[EL] ELB News and Commentary 6/9/21

[Rick Hasen]

“Stephen Breyer’s Nonpartisan Retirement Plan Will Only Make Things Worse”<https://electionlawblog.org/?p=122554>
Posted on June 9, 2021 9:28 am<https://electionlawblog.org/?p=122554> by Rick Hasen<https://electionlawblog.org/?author=3>

I have written this piece<https://slate.com/news-and-politics/2021/06/stephen-breyer-retirement-plan-backfire.html> for Slate. It begins:

The New York Times reported last month that Supreme Court Justice Stephen Breyer, age 82, has been resisting calls<https://www.nytimes.com/2021/05/17/us/justice-breyer-retirement.html> for his retirement from fellow progressives. The reason? Breyer apparently worries that retiring in the face of a public pressure campaign from Democrats will increase polarization and a politicized view of the Supreme Court. In reality, a Breyer retirement delay could well have the opposite effect. If Breyer delays too long and Democrats lose control of the Senate before a successor is chosen, then Mitch McConnell could have the opportunity to block a Breyer replacement and supercharge the last five years of intense polarization around the court.

It’s not hard to imagine how a Breyer delay increases the politicization of the court. Breyer waits to retire for a couple of more years, or even a few more months. Democrats lose control of the Senate in the 2022 midterm elections, or because an elderly member of their bare Senate majority passes away and gets replaced with a Republican, restoring Mitch McConnell to his perch as Senate majority leader. Breyer dies or becomes ill soon after Republicans retake the Senate and leaves the court. President Joe Biden, fulfilling his campaign pledge to nominate a Black woman to the Supreme Court, chooses a judicial superstar like California Supreme Court Justice Leondra Kruger or (soon-to-be D.C. Circuit judge<https://twitter.com/SenateCloakroom/status/1402412398884147202>) Ketanji Brown Jackson. McConnell shamelessly announces that Republicans will hold no hearings for a Supreme Court justice until after the 2024 presidential elections, much like he ran out the clock on a hearing for Merrick Garland to fill the late Justice Antonin Scalia’s seat. Democrats stage protests about the blockade of the nominee, and the nominee’s face is featured prominently in advertising about the court. A key debate in the 2024 presidential election is about who is going to take the seat on the Supreme Court, with knowledge that not only Breyer’s spot, but also likely the seats of Justice Clarence Thomas and Samuel Alito (two staunch conservatives) could open up with a Republican presidential win in 2024. The court is once again the political football in our national arena.
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Posted in Supreme Court<https://electionlawblog.org/?cat=29>


“Republican governors touted their states’ election security in 2020. Then they pushed new voting restrictions in the name of election security.”<https://electionlawblog.org/?p=122552>
Posted on June 9, 2021 8:59 am<https://electionlawblog.org/?p=122552> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo reports.<https://www.washingtonpost.com/politics/2021/06/09/republican-governors-touted-their-states-election-security-2020-then-they-pushed-new-voting-restrictions-name-election-security/?utm_source=rss&utm_medium=referral&utm_campaign=wp_politics>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“We never needed a Jan. 6 Commission. We need a Nov. 3 Commission. This is why”<https://electionlawblog.org/?p=122550>
Posted on June 9, 2021 8:57 am<https://electionlawblog.org/?p=122550> by Rick Hasen<https://electionlawblog.org/?author=3>

Bruce Ledewitz column<https://www.penncapital-star.com/commentary/we-never-needed-a-jan-6-commission-we-need-a-nov-3-commission-this-is-why-bruce-ledewitz/>.
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Posted in chicanery<https://electionlawblog.org/?cat=12>


“How to Safeguard Elections”<https://electionlawblog.org/?p=122548>
Posted on June 9, 2021 7:08 am<https://electionlawblog.org/?p=122548> by Rick Hasen<https://electionlawblog.org/?author=3>

Bill Scher<https://washingtonmonthly.com/2021/06/09/how-to-safeguard-elections/> in the Washington Monthly.
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Posted in chicanery<https://electionlawblog.org/?cat=12>


“State GOPs Can’t Explain Millions In ‘Trump Victory’ Cash”<https://electionlawblog.org/?p=122546>
Posted on June 9, 2021 7:05 am<https://electionlawblog.org/?p=122546> by Rick Hasen<https://electionlawblog.org/?author=3>

Roger Sollenberger<https://www.thedailybeast.com/state-gops-cant-explain-millions-in-trump-victory-cash?ref=home> for the Daily Beast:

Months after the Federal Election Commission notified several GOP state parties of major gaps in their 2020 fundraising and spending reports, the committees are correcting their numbers—but they still can’t explain why the discrepancies occurred.

The issue has raised new questions about possible abuse of a longstanding campaign finance loophole that allows wealthy megadonors to cut massive checks. Last year a number of Republican state parties failed to disclose transfers in the hundreds of thousands, sometimes millions, of dollars, which violates reporting requirements.

There are layers of problems here, but the basic question is whether the state parties complied with federal disclosure requirements,” Paul Ryan, vice president of policy and litigation at election reform advocacy group Common Cause, told The Daily Beast.

It appears systemic. The FEC has so far sent notices to 10 of those 46 state parties that failed to report high-dollar same-day transfers from joint fundraising committees and to the RNC. So far, all but one have responded.

But their explanations have been incomplete or nonexistent. For example, the Rhode Island Republican Party seemed only to acknowledge<https://docquery.fec.gov/pdf/542/202105059446290542/202105059446290542.pdf> the error occurred but did not address how or why. “The $251,771.78 for the Post General report was missed on the original 30 Day Post General report that was filed so an amended report was filed to include that.” The party later filed another amendment<https://docquery.fec.gov/cgi-bin/forms/C00078196/1515198/sa/ALL> disclosing more than $455,500 in transfers from Trump Victory, but did not offer an explanation in that letter either.

The problem stems from joint fundraising agreements—teams of political committees that join together to increase their party’s fundraising power and reach. The arrangements are legal, but it appears the GOP has used them to secretly pass millions of dollars from Trump Victory to the RNC through apparently oblivious state committees….

Joint fundraising arrangements are complicated, but carry major financial benefits. Here’s how it works.

Joint fundraising committees open a back door, allowing national parties to raise more money from megadonors than the law otherwise permits. Because Trump Victory has 48 members, one person can cut a single check equal to the combined contribution limits of all four dozen committees. Trump Victory then distributes that money to the other committees.

For example, two donors gave Trump Victory $817,800 in 2020: Pharma exec Richard Roberts<https://en.wikipedia.org/wiki/Richard_Roberts_(pharmaceutical_executive)>, and Nicole Luckey, wife of billionaire tech pioneer Palmer Luckey, in September and October, respectively.

The arrangement has a second benefit. While a donor can only give $10,000 to a state party, state committees can transfer unlimited sums to the national party—the RNC. This means the RNC can effectively claw back all Trump Victory contributions from the states, including from donors who already gave the RNC the maximum amount.

The strategy traces back to 2016, when then-candidate Hillary Clinton became the first to take advantage of the 2014 Supreme Court decision that opened the joint fundraising floodgates. That helped the Democratic National Committee build a machine that pulled in $80 million<https://www.fec.gov/files/legal/murs/7339/7339_1.pdf> for the DNC—about three times more than Trump’s own machine that year.

The system has been widely criticized<https://publicintegrity.org/politics/comeback-for-legalized-money-laundering-in-party-politics/> by election reform advocates<https://www.issueone.org/issue-one-raises-concerns-democratic-partys-new-mega-joint-fundraising-committee/> for skewing the playing field<https://www.inquirer.com/philly/news/politics/elections/campaign-finance-joint-fundraising-committees-pa-nj-midterm-elections-bob-menendez-brian-fitzpatrick-chrissy-houlahan-bob-casey-20181001.html> in favor of an elite group of megadonors<https://www.politico.com/magazine/story/2017/08/04/soft-money-is-backand-both-parties-are-cashing-in-215456/>.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>


“Bipartisan Policy Center/Morning Consult Poll: Voters Satisfied with Options, Plurality of Voters Prefer to Vote In-Person”<https://electionlawblog.org/?p=122544>
Posted on June 9, 2021 6:55 am<https://electionlawblog.org/?p=122544> by Rick Hasen<https://electionlawblog.org/?author=3>

Release:<https://bipartisanpolicy.org/press-release/bipartisan-policy-center-morning-consult-poll-voters-satisfied-with-options-plurality-of-voters-prefer-to-vote-in-person/>

A national poll conducted in April by Morning Consult and the Bipartisan Policy Center found that voters were overwhelmingly satisfied with their voting options in the 2020 election. Voters also ranked in-person voting on Election Day as their most preferred voting option, with voting preferences varying by political party, race, and region.

“We know that most voters were satisfied with their options in 2020, but elections remain vastly under resourced,” said Matthew Weil, director of BPC’s Elections Project. “Our most recent analysis<https://bipartisanpolicy.org/explainer/solving-elections-resource-allocation/> gives election officials the tools they need to efficiently distribute limited resources without restricting voters’ access to the ballot.”

The pandemic-inspired vote-by-mail expansion helped more voters engage in the voting process than ever before, but the survey shows that many voters still want to vote in person. BPC’s analysis helps election officials manage hard resource trade-offs when preparing to effectively run three elections simultaneously (mail, early, and Election Day).

Taking these steps to prepare now is critical to bolstering confidence in American elections.

Key findings from the BPC/Morning Consult survey include:
·         Eight in 10 voters (80%) report they were satisfied with their voting options in 2020 and more than half (55%) report they were very satisfied.
·         When asked to rank most preferred method of voting, a plurality of voters prefer voting in-person on Election Day (39%), followed closely by early voting in-person (37%) as a second choice.
·         Voting preferences vary between party lines, race, and region. Republican voters prefer voting in-person on Election Day (51%) more than other methods of voting, while Democrats are divided between mail in absentee vote (31%) and in-person voting on Election Day (31%). Preferences also varied by race and region.
·         Voters generally believe that responsibility for election policies should be shared between state and federal governments. Democrats favor federal over state government involvement when it comes to setting and enforcing election laws, while Republicans favor the opposite.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Carter Center Calls for Electoral Law Changes to Follow International Standards”<https://electionlawblog.org/?p=122541>
Posted on June 8, 2021 1:26 pm<https://electionlawblog.org/?p=122541> by Rick Hasen<https://electionlawblog.org/?author=3>

Release:<https://www.cartercenter.org/news/pr/2021/electoral-law-060821.html>

The Carter Center today issued “Ensuring Voter Access while Protecting Election Integrity,”<https://www.cartercenter.org/resources/pdfs/peace/democracy/election-integrity-and-voter-access-report-june-2021.pdf> an analysis of key arguments underlying recent legislative efforts to modify existing electoral laws in states across the U.S., many of which use unsubstantiated claims of massive election fraud to justify restrictions on voter’s access.

The report addresses the two main goals of election administration and reform—ensuring election integrity and facilitating voter access—and concludes that these goals are not mutually exclusive and should be pursued in tandem, following recognized international election principles and standards.

“In our 30-plus years of international election observation work, we’ve seen that it’s possible to make it easier for people to vote without making it easier for them to cheat,” said Paige Alexander, the Carter Center’s CEO. “Democracies are strengthened when as many eligible voters as possible make their voices heard.”

According to international election standards, states are obliged to ensure that election integrity is not compromised by fraud or by malfeasance and also are required to take proactive measures to ensure the full and effective enjoyment of the right to vote by the broadest possible pool of eligible voters. This should include making access to the polls and the casting of ballots as simple as possible.

The key guiding principles for reform are that any restrictions on voter access must be proportional to the expected benefit and based on objective anaylysis, and should represent the least restrictive approach possible.

The Carter Center report focuses on a series of election issues featured in recent reports by The Heritage Foundation, which appear to have informed state legislation<https://www.gpb.org/news/2021/05/17/conservative-heritage-group-takes-credit-for-georgia-voting-overhaul>. Topics include accuracy of voter registration lists; citizenship verification; voter ID; absentee ballots; vote trafficking and vote harvesting; same-day registration and automatic voter registration; voter assistance; private funding of election officials and government agencies; election observation; early vote counting; and legal standing for state legislatures.

The Center’s report finds that while several of the concepts outlined by The Heritage Foundation appear unobjectionable in principle, in practice, the foundation’s suggested legislative solutions are likely to significantly increase burdens on voters.

“To avoid creating new or unnecessary burdens, The Carter Center is urging state legislatures to adopt measures that rely on the least restrictive approach possible to secure the integrity of elections, that focus on objectively valid concerns, and that avoid unnecessary reductions in access,” said David Carroll, director of the Center’s Democracy Program.

Measures that appear likely to increase burdens and reduce voter access, without preventing clear or specific threats to election integrity, do not meet these criteria. These include reforms that set voter registration deadlines well in advance of Election Day, limit absentee voting to individuals with a prescribed excuse, curtail automatic voter registration, limit the number of days for early in-person voting, and limit the number and placement of drop-boxes for mail voting—all of which will inevitably decrease voter turnout without substantially reducing voter fraud.
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Posted in election administration<https://electionlawblog.org/?cat=18>


“New CVF Report Sheds Light on Harassment of U.S. Election Officials”<https://electionlawblog.org/?p=122539>
Posted on June 8, 2021 1:21 pm<https://electionlawblog.org/?p=122539> by Rick Hasen<https://electionlawblog.org/?author=3>

Release:<https://www.calvoter.org/content/new-cvf-report-sheds-light-harassment-us-election-officials>

A new California Voter Foundation report sheds light on the threats and attacks U.S. election officials have endured in the wake of the 2020 election.

“Documenting and Addressing Harassment of Election Officials” features findings gathered through interviews with eleven election officials from six states along with eight of the nation’s leading election experts.

The report finds that ten of the eleven officials interviewed endured death threats, other threats or abusive language. The report is available online at www.calvoter.org/harassment<http://www.calvoter.org/harassment>.

“While many have put the last election in the rear-view mirror, election officials are still being attacked,” said Kim Alexander, California Voter Foundation (CVF) president and founder. “These attacks are driving a disturbingly high number of our democracy’s frontline workers to leave their positions. In California, 15 percent of election officials have already resigned and more may follow.”

Officials interviewed for the report are not identified and were selected for their perspective and experiences of harassment. The report is authored by Grace Gordon, a UC Berkeley Master of Development Practice graduate who conducted her research under the guidance of Alexander and Cathy Darling Allen, CVF’s board chair and County Clerk and Registrar of Voters for Shasta County, CA.

Four of the eleven officials interviewed reported receiving explicit death threats. Some election officials described attackers threatening to inflict harm upon their family members. Election staff members have also been harassed and threatened. The report includes direct quotes from election officials and contains a trigger warning for readers that the content is violent and may be disturbing. Nearly all threats were received by phone calls or voicemail.

With women accounting for over 75 percent of local election officials, the report also explores the relationship between misogyny and harassment in the threats and abuse of election officials.

Several officials reported an insufficient response from law enforcement to death threats and other threats they received. Most of the election officials and experts interviewed cited lack of funding for election offices as a major concern.
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Posted in chicanery<https://electionlawblog.org/?cat=12>, election administration<https://electionlawblog.org/?cat=18>



--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org<http://electionlawblog.org/>



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